Nina Paley sent me this from “a friend who publishes eBooks,” and asked for my take on how to reply. Here is the question and my response (edited):

Author:

Here is a scenario I have a hard time getting past. Suppose there were no legal protection against anyone copying anything, and suppose there were a bunch of people trying to sell ebooks or apps or whatever in a nice convenient store. Within weeks of any ebook/app being released for sale, a company set up for the purpose of doing exactly this would have released a copy of it for free, framed with a small ad at the bottom. A few people would think this is despicable and always seek out and buy the one put up by the creator, but most people most of the time would go for the free one. Maybe not the people you hang out with in New York, but the people I hang out with in Longview would consider it laughably stupid to pay when they can get it for free with just a little ad at the bottom. They would not care *one iota* about who made it, they simply do not think that way.

Shouldn’t there be some way for me to prevent someone from taking my ebook and reposting it with an ad? I know you’ve heard this all before, but humor me, talk me out of it….

Me:

First I would refer to John Hasnas’s comments in his classic The Myth of the Rule of Law.
After arguing against the state and for anarchy, he says:

I am aware that this explanation probably appears as initially unconvincing as was my earlier contention that the law is inherently political. Even if you found my Monosizea parable entertaining, it is likely that you regard it as irrelevant. You probably believe that the analogy fails because shoes are qualitatively different from legal services. After all, law is a public good which, unlike shoes, really is crucial to public welfare. It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. If human beings had the wisdom and knowledge-generating capacity to be able to describe how a free market would work, that would be the strongest possible argument for central planning. One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals. It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge. Further, for an advocate of free market law (or Socrates) to even accept this challenge would be to engage in self-defeating activity since the more successfully he or she could describe how the law (or shoe) market would function, the more he or she would prove that it could be run by state planners. Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so. By patronizing those who most effectively meet their particular needs and causing those who do not to fail, consumers determine the optimal method of supply. If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

So, what would a free market in legal services be like? ….

then Hasnas proceeds to make some ejumacated guesses.

See also Leonard Read’s classic I Don’t Know, which makes some related points.

So: on to my reply.

It’s hard to answer such questions, because you are right away agreeing with their background assumption which is that the law and policy ought to be designed around a certain result, and, in this case, the result being the perpetuation of the model people have been used to that developed because of copyright. It’s almost like if you can’t find an answer, then the assumption is that your normative theory is wrong. That if you can’t predict the future that would happen in a world that followed your recommendation to abolish copyright, then you have no right to abolish it.

Still, we have to sometime try to talk their language, on their level. I guess one approach would be to note that there are a variety of principles reasons to oppose copyright, even if we can’t predict what the world will look like in such a — more free — society. Some Russians under communism would have asked you who would make toothpaste and how many brands there would be, if you abolished the state toothpaste agency. If you don’t know the answer does that mean communism should continue?

Also, note in her example the fact of the ad is irrelevant, yet she is bothered by this. She is bothered by the “pirate” making money, when in fact the real problem she points at is her loss of revenue. If the other site was free and had no ad she’d be even worse off. So her concern is someone copying her and putting it up for free. NOt the ad.

I would also note that they are not literally “taking” her ebook. She still has hers. What they are “taking” from her, in her view, is the money in the hands of customers that they “would have” otherwise spent on her. But she has no property right in the money in prospective customers’ wallets, does she? If they want to refrain from buying her ebook that is their right.

As for the ad she has somewhat of a point: the main reason someone else would bother to put her ebook up is for some gain. So they sell it–which is hard to do… why would someone buy it from a pirate instead of from the author? or they put up ads. But of course the more obtrusive the ads are, the more irritating they are to buyers which will drive some away.

Also: many people who get it for free, are not people who “would have” bought it anyway. I would imagine 90% of them would not have bought it at all–they can’t afford it, or they were not willing to buy it. For those free downloads, she is not worse off at all; in fact she is better off as she now may have more fame or fans etc.

But I think she is wrong that most people would not prefer to get it from the author. If it’s for a reasonble price, I think many would. Louis CK sold a million dollars of his recent video on his own site for $5 a pop, in 2 weeks, even though people could pirate it elsewhere. One reason, I think–is if I get an ebook from the author for $1 say, I know it’s the latest version, authorized, etc. How can I be sure the one I am pirating is the latest, or not messed with by the pirate or someone else?

Consider also: either this is a popular book/author, or not. If it’s not, they don’t make much money anyway in today’s world, and they might not in a copyright free world either. This is not the fault of no-copyright. If the book is popular, then the author has to find a way to make money even though there are pirated copies out there. But this is the case NOW. Right? The author knows pirated copies will be available. The author really only needs to make sufficient money from paying customers. In a copyright free world, imagine someone like JK Rowling. She writes a Harry Potter novel. She sells copies on her site and makes a bit of money, but then it gets popular so pirated copies start circulating too. She then becomes wildly popular, in part due to piracy. And probably 90% of the people who got bootleg copies would not have bought the book anyway. So she loses some sales, but now she is very popular.

So she has book 2 written. She posts a note on her site to her fans saying that she has book 2 ready to go, and she’ll release it as soon as she gets a million pre-orders for $5 each. iN a month she has $5M in the bank and so she releases the book. And then she makes another couple million more, and then sales taper off because of piracy and normal attenuation. Then she repeats this with the next 5 books. Soon she is worth $100M.

Meanwhile three different movie studios begin making a movie version of her first novel–without her permission. She gets no payment but on the other hand this drives more sales of her earlier and upcoming books–it acts as advertising for her. But one of the three movie studios, realizing it has competition from the other two, seeks a way to distinguish its movie. It approaches Rowling and asks her to consult on the movie and to promote the movie as the “best” and “authorized” version. They pay her $1M plus 2% of box office receipts, and she consults, helps improve it, and makes sure they don’t adulterate her plot too much etc. Or maybe she helps with the screenplay. In any case the “authorized” movie does way better at the box office than the unauthorized versions–if you were a Harry Potter fan which of the 3 would you want to see? Maybe all 3. but if you could only see one…. the one the author authorized of course.

And let’s say all this was on a lower scale. The money might not be as much, … but maybe the author is famous enough to get a job offer teaching in an English literature department. Or writing or polishing screenplays. Or copyediting others’ draft novels for a fee.

So in my view, if you write a book that people like, then there are a number of ways you can find to profit from it.

See also: Examples of Ways Content Creators Can Profit Without Intellectual Property; The Creator-Endorsed Mark as an Alternative to Copyright

A somewhat confused op-ed in The Financial Post, Terence Corcoran: No oil meets no copyright. He’s sees similarities between the opposition to SOPA, the copyright enforcement bill that was just defeated by the Internet blackouts, and the opposition to the Keystone pipeline from Canada to the US, which Obama just (for now) rejected:

the pipeline proposal and the SOPA copyright protection law are being derailed by remarkably similar radical ideologies that go far beyond the narrow impact of the pipeline and Internet legislation.

Behind the Keystone campaign is the No Oil movement, which aims to shut down fossil fuels as a source of energy to save the planet from climate change. Behind the anti-SOPA campaign stands No Copyright, which wants shut down intellectual property as a right and make information free. Both movements are at root religiously anti-corporate and share a deep conviction that the current economic regimes must be overthrown.

But the opposition to SOPA (and copyright) has nothing to do with being anti-business or anti-free market or anti-corporations. In fact the real reason to oppose copyright is that it violates private property rights. Most civil libertarian and leftist and Internet/tech opponents of SOPA do not oppose copyright in principle, but argue that SOPA “goes too far.” But among principled libertarian opponents of copyright and SOPA, most are either left-libertarian or Austro-libertarian. (The Rand-influenced libertarians are pro-IP; the utilitarians avoid extremes or principle.) But even the left-libertarians do not root their opposition to IP in being opposed to corporations. Most of them are opposed to corporatism, sure–but any good libertarian should be opposed to the fascist linkages between the state and business.

The opposition to Keystone is different. In part is is based on environmentalist antipathy toward industrialism and increased production of energy. But the opponents of IP are not per se opposed to industrialism or energy–though the free market capitalist could easily oppose the state’s corporatist role in approving the Keystone project, including the various eminent domain takings the state would have to engage in to push the project forward. In short: SOPA opposition is based in respect for property rights and the free market. Opposition to Keystone is mostly motivated by anti-capitalist environmentalism. Corcoran is confused.

see Jeffrey A. Tucker on Intellectual Property

By Jeff Tucker, from Laissez Faire Today:

Violating Rights in the Name of Property

Jeffrey Tucker · January 19, 2012

You know that anti-piracy video you sometimes see at the beginning of movies? It explains how you wouldn’t steal a handbag, so neither should you steal a song or movie by an illegal download. Well, it turns out that the guy who wrote the music for that short clip, Melchoir Rietveldt, says that his music is being used illegally. It had been licensed to play at one film festival, not replayed a million times in DVDs distributed all over the world. He is demanding millions in a settlement fee from BREIN, the anti-piracy organization that produced the thing.

Interesting isn’t it? When you have hypocrisy that blatant, criminality this rampant, practices called piracy this pervasive – it reminds you of the interwar Prohibition years – you have to ask yourself if there is something fundamentally wrong with the law and the principles that underlie the law. Yes, people should keep to their contracts. But that’s not what we are talking about here; this case is being treated not as a contract violation but a copyright violation, which is something different. We are dealing with a more fundamental issue. Is it really stealing to reproduce an idea, an image, or an idea? Is it really contrary to morality to copy an idea?

The verdict here is crucially important because ever more of the state’s active intervention against liberty and real property is taking place in the name of intellectual property enforcement. The legislation SOPA could effectively end Internet freedom in the name of enforcing property rights.

If people who believe in liberty do not get this correct – and it no longer possible to stand on the sidelines – we will find ourselves siding with the state, the courts, the thugs, and even the international enforcement arm of the military industrial complex, all in the name of property rights. And that is a very dangerous thing at this point in history, since IP enforcement has become one of the greatest threats to liberty that we face today.

Another case in point to consider here. This week a judge in Nevada, acting in a case brought by the luxury Chanel, ordered the takedown of some 600 websites that he alone was guilty of trafficking in pirated products, that is selling fake Chanel products. There was no extensive research done; the claim of the company was enough. The judge then issued an order that went beyond the parties to the lawsuit itself and ordered the complete de-indexing of such site by GoDaddy, Facebook, Google, Twitter, Yahoo and Microsoft. Meanwhile, there is legislation before Congress that would permit similar takedowns of any website regarded as a violator of intellectual property.

Every time one of these cases comes along, I’m reminded a scene from the streets of Washington, D.C. that I saw years ago. Some immigrant families were doing a brisk business in knock-off fashion goods and watches. A new convert to the cause of free enterprise, I stood there in admiration of their entrepreneurial skill. They weren’t ripping anyone off. The good looked very much like the real thing but with a few difference, and the consumer was not defrauded in any way. All buyers knew exactly what they were getting, and they were also aware that they were getting their goods at a tiny fraction of the price they would pay for the real thing at the department store.

I recall thinking: isn’t the market grand!

A few days later, the Washington Post carried a story about how those very vendors were arrested for trafficking in fakes and violating trademarks. A judge issued the order and their property was confiscated. And so it was. The bustling businesses was now shut down by the police. Consumers and producers were thereby denied a chance to trade peacefully to their mutual benefit. And this was all because some third parties complained, invoking a government regulation.

But wait a minute? If you own a trademark, isn’t it stealing for someone else to come along and make your product, hocking it as a great knockoff but selling it at a fraction of the price? If so, can the judge’s order be seen as the enforcement of property rights, and isn’t property rights enforcement exactly what we free enterprisers are supposed to favor?

Let us grant that trademark – which is what is being enforced here – is the most intuitively plausible of all forms of intellectual property protection. Trademark concerns a federal registration of a name or logo, one that forbids competition from using those protected things in commerce. I don’t think that is compatible with free enterprise, but much less defensible forms of IP are copyright and patent. They both stand the competitive principles of free enterprise on their heads, and illustrate just how contrary to free markets IP really is.

The idea of competition is that you are free to emulate the success of others, improve on the product or process involved in making or marketing it, and chip away at the market share held by another producer. Because of this freedom, every producer must constantly innovate and cut costs in service of the consumer, and there is constant change taking place among the firms that seek to profit from enterprise.

With patent protection, however, a single company owns a government-protected monopoly on a product or process, and can thereby exclude all competition. This is a variation of the old “infant industry” fallacy for protectionist policies. One company is effectively sheltered by law for a period of time from the demands of competitive commerce. It doesn’t really matter if another firm stumbled on an idea independently. The patent forbids anyone from becoming a competitor to the privileged firm.

With copyright, everyone in society is bound for a very long period of time from producing any words or making any image that would seem to reflect a learning process used a copyright holder as an example. We have a similar granting of monopoly privilege here but instead of having to seek out protection, it is granted automatically. This might seem to be a benefit to the creator, artist, composer, or author, but the reality is that these people nearly always sign away their rights to the production company, the publisher, the filmmaker or whatever, and this most often occurs for the lifetime of the copyright. Even the creator, then, must beg or pay in order to use his or her own material. The law has been expanded and internationalized so that the monopoly lasts 70 years after the death of the person who wrote the song, drew the picture, or wrote the book.

If you look at the origins of these two institutions, we can see the essence of what is going on. Copyright originated as a government restriction on printing during England’s religious wars. As it developed, it had nothing to do with individual rights and everything to do with protecting dominant publishing firms against competition. It is the same with patent, which grew out of the mercantilist experience of Europe in which the prince would grant one producer rights against all competitors. Both are designed to slow down innovation and drag out the process of economic development with government restrictions. For this reason, the idea that IP somehow creates an incentive to innovate is completely wrong; in fact, the reality is precisely the opposite.

The advent of the liberalism of the 18th century gradually wiped out most of these antique institutions and replaced them with competitive capitalism. But in the world of ideas, these protections remained and became worse, especially in the latter part of the 20th century. They are remnants of a precapitalist age.

In the digital age, when ideas can be multiplied by billions of times in a matter of seconds, the notion of IP protection becomes ridiculously outmoded. And it is for that very reason that enforcement is being stepped up and now threatens free speech and the freedom to innovate. Ultimately, a consistent enforcement of IP would shut down free enterprise as we know it.

This is not an easy subject and it does take some serious thinking to sort out all of the issues. But here is one clue about where people who love freedom should come down on the question. When the state is totally dedicated to using its enforcement arm to harm so many businesses and so many free associations, and it does it in the name of private property, you have to wonder if something has gone terribly wrong. The state is the least trustworthy institution when it comes to defending our freedoms; there is no reason to suppose that this gang of thieves has been converted to the cause of real property rights just because that is what it claims to be defending.

[This article is based on a speech I gave at the University of Alabama, Birmingham, December 5, 2011.]

This Whiskey and Gunpowder posting is reprinted here, and below:

Whiskey & Gunpowder — The Daily Missive of Laissez Faire Books

Gary Gibson, Minneapolis, Minnesota…

Normally on the weekends we turn the floor over to letters from you bar patrons…But today
we thought you’d enjoy this exchange between us and a friend on Google chat. It concerns the escalating Internet war between the state and …well, everybody else.

And of course, the peg upon which the state has hung its case is intellectual property…copyrights, patents and all that jazz…

Read on below…

me: How do you feel about the idea of copyright?

friend: It’s difficult… because I’m a person who makes things I understand that there should be protection against someone stealing one of my illustrations and selling it and profiting off of it and not giving anything back to me… BUT, I dunno it’s a fine line… because as Thomas Jefferson said:

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”

me: That’s what Jeffrey’s been writing about. Copyright — especially with today’s tech — is artificially trying to make a non-scarce good into a scarce one.

friend: I just read that hes an Auburn man… ha! Thats awesome

me: Yes, he’s my newest Best Friend Forever. Ideas are infinitely reproducible. If I copy it, you still have it. It’s not like land, or clothes, or a car.

It’s almost impossible not to break IP laws with the Net. Your only real hope is not to paste anything or link to anything.

friend: But everything I know I stole from someone else according to IP law. All culture, all progress comes from sharing and remixing of ideas.

friend: But that doesn’t mean that all intellectual property is open for anyone to profit off of. My mentor was big on one thing. There is taking and there is stealing. Stealing is ok [because stealing acknowledges the idea is someone else’s property]. Taking is not [i.e. passing it off as your own].

[Ed note: One can plagiarize without violating copyright and violate copyright without plagiarizing.]

me: But what is “Intellectual property”? You profit from the initial bringing to market and from the marketing and delivery of content. Imitators come along and make it better and cheaper. That’s progress. That’s why things get cheaper over time, benefiting us all. Imagine if all the great things at the start of industries were copyrighted.

friend: Forceps were. The idea was stolen and redistributed.

me: Imagine if the tech that made clothes and books easy to reproduce had been copyrighted. Can’t really steal an idea.

That’s our point. You can’t lock ideas up and get the state to back up prosecution of theft. This is being played out in realtime now.

If you really don’t want anyone to have your idea, don’t ever share it.

friend: well, my problem is that you all are only looking at this philosophically, youre not people who make things… again, stealing an idea and making it your own is totally cool… taking someone elses work and presenting it as your own… is wrong and should have repercussions.

me: Ah, but the same technology that makes it possible to plagiarize makes it impossible to get away with it.

People are called out all the time. If you become known as an unoriginal hack, you will lose market share.

If some unoriginal hack just reposted everything Jeffrey wrote as his own work, how long before he was found out?

I daresay it would take a couple days at most.

friend: I wouldn’t say impossible to get away with it… I’d say with the amount of information available you’re more likely to be held accountable, but you also have to take into account the misinformation factor and how quickly and easily misinformation spreads on the Internet.

me: It’s also corrected pretty quickly too.

friend: No way. Look at any music file sharing site and you’ll see that its just not true.

me: I don’t go to those places. Explain.

friend: With so much information available (in this case well use the billions of mp3s available as an ex) it’s literally impossible for all of the file names to be corrected…

You get one “Marvin Gay- Lets Stay Together” and that one bit of misinformation will spread and never ever be corrected… how many Youtube videos have you seen with the wrong artist attached to a song? And Youtube is pretty heavily policed by its own users…

I guess what I’m saying is that the internet is not perfect … it is notorious for spreading misinformation and as we both know… even when that info is corrected, only a small percentage of people will “take” to that corrected info… aka every [expletive] child alive thinking that Marvin Gay wrote “Lets stay together”!

me: Meh. Life is that way. Before the Internet people were even more generally misinformed. People believe all kinds of stupid myths. Cracked.com has made its entire existence about humorously correcting things like this.

It’s not a big enough deal to halt the sharing of information. That’s the stuff on which progress is built.

friend: and they’re wrong half the time too

me: Ha ha. Especially when they contest economic theories I champion. No one’s perfect. We’re not perfect now because of the Internet. But that’s the same argument people used against Wikipedia which is right enough often enough and which keeps getting better.

friend: because its self policed

me: Hell, before the Internet, wrong [expletive] would get into encyclopedias and stay there for decades.

I’m saying, don’t sweat wrong attributions too much. They will happen. The world is better off if we don’t make it the police state’s job to correct them.

friend: I guess what I’m saying is that, I believe copyright laws and Internet censorship should be treated as separate beasts… not mutually exclusive but dealt with separately and probably on a case by case basis, like the internet is just the medium

me: Ah, but the state is using “intellectual property” as a backdoor to censorship. Like Jeffrey says, IP is just the convenient taser. They understand that the Internet is a threat to their legitimacy.

friend: It’s not a threat to their legitimacy. Their unwillingness to evolve and adapt is a threat to their legitimacy.

me: The spreading of anti-state ideas has taken off thanks to the Net. What if the future is a stateless society?

How do you adapt to extinction? Not willingly I’d imagine.

The crusty monopolists at the head of the recording industries are the same kind of people who seek political power and figure the world needs it and them. They aren’t going to wither away quietly and leave the rest of us alone.

friend: gary, sometimes talking to you is like talking to a stoner grad student who’s read too much Nietzsche

me: My philosophical stance is based on no coercion. Ever. I believe in purely mutual exchange with no state involvement. It’s market anarchy or agorism. So I look at it from that perspective. I think what’s developing in the digital world now with Creative Commons is the non-coerced, non-political way to handle this.

The answer is to let people figure it out for themselves with each other, given what the technology makes inevitable.

friend: Yes, I like that actually.

And that’s pretty much where we both left it, good patrons. And now we go to this quote (that we hope falls under “fair use” laws thanks to the legal magic of quotation marks and proper attributions)…

From Sheldon Richman in his article “Patent Nonsense”:

“In practical terms, when one acquires a copyright or a patent, what one really acquires is the power to ask the government stop other people from doing harmless things with their own property. IP is thus inconsistent with the right to property.

“An IP advocate might challenge the proposition that two or more people can use the “same” idea at the same time by noting that the originator’s economic return from exploiting the idea will likely be smaller if unauthorized imitators are free to enter the market. That is true, but this confuses property with economic value. In traditional property-rights theory, one owns objects not economic values. If someone’s otherwise unobjectionable activities lower the market value of my property, my rights have not been violated.

“This objection exposes what is at stake in IP: monopoly power granted by the state. In fact, patents originated as royal grants of privilege, while copyright originated in the power to censor. This in itself doesn’t prove these practices clash with liberty, but their pedigrees are indeed tainted.

“Property rights arose to grapple with natural scarcity; ‘intellectual property’ rights were invented to create scarcity where it does not naturally exist.”

And we finish on an ominous note. From the Atlantic Wire concerning the attacks by Anonymous:

“…yesterday’s events were both good and bad news for those hoping Congress will keep its mitts off the Internet. First, the shutdown inadvertently proved that the U.S. government already has all the power it needs to take down its copyright villains, even those that aren’t based in the United States. No SOPA or PIPA required.

“Of course, no government is ever satisfied with ‘just enough’ power, which is why opponents lashed out at the regime that already exists. But rather than forcing Congress to back off, the shutdown of government and corporate websites is likely to anger and re-energize those anti-piracy zealots who think the web needs to be brought under control. Instead of surrendering in fear or even taking a more measured approach, they are more likely to double down on new legislation and harsher penalties meant to corral those who thumb their nose at the government. That in turn will lead Anonymous, LulzSec, or some other group (perhaps one with even more nefarious intentions) to raise the stakes even higher, causing more chaos and keeping the cycle going.

In other words, there can be no grand compromise. In the end, we get neither air-tight copyright enforcement nor an “anything goes” digital freedom, but instead see an escalation of ‘scorched-web’ tactics and a never-ending war where more and more people lose.”

Oh my.

We surely have some “interesting times” ahead. January 18 may turn out to be the Archiducke Ferdinand event we’ve been expecting. And here we were looking at Iran!

The U.S. vaporized an American citizen in another country. It’s held people without charge for years at a time. It’s codified all this into law. But that codification is just the icing, not the cake.

The federal police have just raided homes on the other side of the planet in order to arrest non-U.S. citizens in a foreign country.

The kid gloves are off. And nowhere is out of reach. If the state wants you, it will get you, no matter where you are.

That’s why we’re sticking it out here for now. We figure the fight’s gone global.

But we’re not terribly worried. It will sort itself out. Our bets are on liberty, the free markets and progress. The state may do a great deal of harm as it senses its demise, but ultimately it will lose. Lord, haste the day.

In the meantime, those who bet on progress now are likely to come out the other side of this very well off. So make sure to keep tuning into these pages as we ride this out…

…But be sure to click here to make sure your wealth is set to increase as the innovation curve goes vertical.

Regards,

Gary Gibson
Managing editor, Whiskey & Gunpowder

Kevin Carson, writing on C4SS, asks: So What if SOPA Passes? This piece reminds me a bit of this great line in a Salon article about SOPA:

No wonder Chris Dodd is so angry. The Internet is treating him like damage, and routing around it.

(A nod to Internet pioneer John Gilmore’s comment: “The Net interprets censorship as damage and routes around it.”)

It reminds me also of Cory Doctorow’s point that technology helps the people more than the state, because the state is already in control, so it is only benefitted a relatively small amount by greater technology, while previously unorganized, disparate citizens can now organize and communicate and inform people about the state much better with the help of modern technological tools.

So What if SOPA Passes?

Posted by Kevin Carson on Jan 23, 2012 in Commentary • Comments (0)

In a single day of glory, January 18, a major portion of the Web went dark as a warning that we will no longer tolerate the Copyright Nazis’ infringements on our speech.

The next day, with the FBI’s takedown of MegaUpload, they showed us the law doesn’t even matter to them — that they never needed SOPA in the first place. And they really didn’t. For the past few years, the FBI has seized the domain names of alleged “intellectual property infringers” through in rem actions and civil forfeiture. SOPA was just a legal fig leaf. As Center for a Stateless Society (C4SS) Media Coordinator Tom Knapp argues, regardless of whether SOPA passes, its substance will still be implemented piecemeal through executive action.

But only hours after the MegaUpload takedown, Anonymous showed us the real way to fight back against the Copyright Nazis. The good guys’ sites went dark on Wednesday; the bad guys’ sites went dark on Thursday. The websites of the US Department of Justice, FBI, MPAA, RIAA, and dozens of media companies were taken down by distributed denial of service (DDOS) attacks.

The beauty of it is, this was an an impromptu action using Anonymous’ “Low Orbit Ion Cannon” attack from our grandparents’ day, all of two years ago. DDOS isn’t hacking a site; it’s the equivalent of tearing down a poster — taking a site temporarily offline by overloading it with traffic. In contrast, during the past year, Anonymous has actually infiltrated major corporate and institutional websites — like those of HBGary, Texas law enforcement, the Bay Area Rapid Transit (BART), and Stratfor — and published reams of highly embarrassing internal emails and memos. This is called a “doxing” attack. Just my guess, but I imagine we can expect something similar to happen to the MPAA, Chris Dodd, and assorted Big Content companies starting any day now.

The ultimate response, rather than trying to fight for reform within the system, is simply rendering the Copyright Nazis’ filthy laws — whatever they are — unenforceable. As C4SS board member Charles Johnson has argued, a gram of circumvention is worth a metric ton of lobbying. Let the wicked write whatever laws on paper they see fit; the righteous will break them, as Samson broke iron chains like bands of tow.

The seizure of MegaUploads’ domain name is a shot across the bow, a warning to companies who store and transfer large files through the Cloud, for entirely “legitimate” reasons (under the existing copyright monopoly), that their data is vulnerable to lawless action by the state. The Copyright Nazis’ rentacops in the FBI are only creating a powerful incentive for websites to migrate to servers in places outside the American Gestapo’s control. Iceland, an emerging free information haven, is a good candidate.

The American state’s decline into fascism is also creating powerful incentives for Internet users here behind the USA’s DRM Curtain to adopt Tor routers and circumvention tools like the Firefox DeSopa extension. The latter extension automatically routes to a site’s actual numeric IP address when the domain name is shut down. (MegaUpload is already back up and accessible at its IP address, http://109.236.83.66/, by the way).

Totalitarian regimes in China and Iran are unable to prevent their citizens from using such means to access information in the Free World. The Lords of Scarcity and their hired thugs in the American state, likewise, are unable to prevent Americans from breaching the Great Firewall and communicating freely with the Free World.

There’s also another promising avenue of attack. Just about every day or two, Mike Masnick at Techdirt mentions another example of some Copyright Nazi Congresscritter or Big Content company whose own website includes copyrighted material without permission. If SOPA passes, we need to start actively flagging all such content, calling Joe Biden’s 800 anonymous snitch number, or whatever is necessary to subject the Copyright Nazis to a costly war of attrition under their own laws. In fact, by using government coercion against us, they’ve put themselves outside the law and made themselves lawful spoils of war — why does the violation even have to be real, so long as the complaint is anonymous?

By setting itself up as the World Hegemon enforcing artificial scarcity and information lockdown, the United States will simply reduce itself and its satellites to the position of a closed, squalid, and declining society, shut off from a surrounding world of free, open, and agile networks. And in the end, it will relegate itself to the ash heap of history.

Interesting argument from law professor Jonathan Masur, in his paper Patent Inflation:

Abstract:
For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular failings. First, the PTO grants significant numbers of invalid patents, patents that impose substantial costs on innovative firms. And second, over time the Federal Circuit has steadily loosened the rules governing patentability, allowing ever more patents over a greater range of inventions. This Article argues that both of these modern trends may be attributable in whole or in part to the asymmetric institutional relationship between the PTO and the Federal Circuit. If a patent applicant is denied a patent by the PTO, she can appeal that denial to the Federal Circuit. However, if the PTO grants the patent, no other party has the right to appeal. Accordingly, the PTO can avoid appeals and reversals, both of which are costly in monetary and reputational terms, simply by granting any patent that the Federal Circuit might plausibly allow. Because the PTO will grant nearly any plausible patent, the vast majority of rejected applications that are appealed to the Federal Circuit will concern boundary-pushing inventions that are unpatentable under current law. Occasionally, a particularly patent-friendly panel of Federal Circuit judges will elect to reverse the PTO and grant a patent that the Agency has denied. The Federal Circuit’s decision will create a new, inflationary precedent. The boundaries of patentability will expand slightly, as this new precedent exerts influence on the other circuit judges. And as the Federal Circuit’s conception of what may be patented expands, the PTO will similarly inflate its own standards in order to maintain an adequate margin for error and avoid denying a patent that the Federal Circuit is likely to grant on appeal. Patent law will thus be subject to a natural inflationary pressure.

Seems plausible to me. And not completely dissimilar to the way the FDA has an incentive to deny approval to new drugs if there is any chance it might be harmful: people who die from an approved drug give the FDA bad press. But you never see the victims of denials of a given life-saving drug. Masur quotes one scholar with a somewhat related observation about the FDA:

FDA regulators care about their own professional reputations and the reputation of the agency because these reputations may influence their career prospects in and out of government.

Update: Masnick’s post.

Interesting new model from Ed Bott (seems similar in some ways to one of my own publishers, Quid Pro Books, who published my Louisiana Civil Law Dictionary). Love their lack of DRM in their epub files. Reminds me a bit of Louis C.K.’s success with his recent video sales. And iTunes sells DRM-free songs and does well.

It’s amazing to see a newspaper editorial that is actually somewhat informed:

The Supreme Court on Wednesday made it a crime to play without permission the music of a Russian composer who’s been dead for 58 years. A 6-2 ruling pulled the works of Sergei Prokofiev out of the public domain, requiring orchestras who have been legally using his music for free to begin paying fat royalties to some estate. As this heavy-handed decision came down, the public began to fight back against the congressional push to further tighten the screws of copyright law.

High-profile websites like Google and Wikipedia asked visitors to call and urge their congressmen to reject the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). These bills would give the attorney general authority to declare nondomestic websites as “infringing” and shut them down. The public outrage at the idea of Big Brother messing with the Internet swamped Capitol Hill phone lines. Senate Majority Leader Harry Reid was forced to issue a tweet of retreat. “In light of recent events, I have decided to postpone Tuesday’s vote on the Protect IP Act,” said the Nevada Democrat.

Members of Congress had been promoting these bills at the behest of Hollywood. Motion-picture and record studios have always feared the march of technology. In 1976, Universal and Disney sued Sony to try to stamp out the videocassette recorder. In 1999, the industry launched lawsuits to stop peer-to-peer file-sharing software and music downloads. Tinseltown has been wrong at every step. Once they resigned themselves to adapt to the market place, studios made billions on sales of videotapes and music downloads.

Last night I appeared for two hours on FreeTalkLive (1-22-12 show), with hosts Mark Edge and Stephanie. We discussed intellectual property and SOPA. (Audio)

Great Slate piece by Mark McKenna:

Don’t Stop at SOPA

SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?

By Mark P. McKenna|Posted Friday, Jan. 20, 2012, at 4:59 PM ET

Opposition to the Protect IP Act (“PIPA”) and Stop Online Piracy Act (“SOPA”) reached a fever pitch this week, following a coordinated effort by a number of technology companies and technology-related websites that included a day-long Internet “blackout” in protest of the proposed bills. And the opposition seems to have been remarkably successful, with the White House announcing its opposition to the bills and so many senators and representatives—including many former co-sponsors of the bills—withdrawing their support over the last few days that both the Senate and House have shelved consideration of their respective bills.

Thank goodness. These bills are terrible policy and they have very serious constitutional infirmities. Among other things (and there are many other things), these two bills empower the attorney general to have entire websites taken down based only on application to a court and an ex parte hearing (meaning a hearing at which the defendant is not present), flagrantly violating the Supreme Court’s prior restraint doctrine. They also allow courts to order Internet service providers to stop recognizing sites deemed “dedicated to infringing activities” in these ex parte hearings (of which there is no apparent opportunity for review). This remedial approach presents a clear threat to the Internet’s architecture and, according to the country’s top cybersecurity experts, greatly increases security and privacy risks. These and other problems have been well covered, and I will not belabor them here.

Read more>>

This New York Times opinion piece investigates the question of whether the color red can be trademarked and enforced. The op-ed is right in drawing attention to the absurdity but wrong in calling for a comprehensive package of legislation for fashion. How about a free market instead?

P.S. I would add the cool image from the NYT story but these days who knows anymore what might get you arrested at gunpoint?

Great LewRockwell.com piece by Gary North:

Victory on SOPA: Lessons Learned

by Gary North

Recently by Gary North: Auditing the FED’s Gold

Before the day was over, a majority of our elected representatives were doing a superb imitation of the captain of the grounded Italian cruise ship. They abandoned ship as fast as he did, and for the same reason. (Note: the reason was not that they had slipped and fallen into the lifeboat, then to be carried to safety against their will.)

A few weeks before, the Senate version of the House’s SOPA (Stop Online Piracy ACT) bill, called PIPA, was unanimously passed by the Senate Judiciary Committee. PIPA stands for the Protect IP [Intellectual Property] Act. It was non-controversial at the time. It was on a well-greased skid to passage.

Let us not be naive. SOPA/PIPA is a payback for to the entertainment industry’s generous support of PACs and campaign donations. For a list of who got how much, click here.

Senator Ron Wyden (D-Oregon) did object. He was not on the committee. He vowed to filibuster PIPA. So, Harry Reid announced that he would push it through. He vowed to introduce a 60-vote cloture motion to limit debate. Senator Reid said he would schedule the debate on January 24. There is a Website called Unanimous Consent. It tracks the fast-track bills. Here was its assessment on December 23. [continue reading…]

Amazing, insightful piece by Jeff Tucker from Laissez-Faire Today:

Power vs. People in the Digital Age

Jeffrey Tucker · January 20, 2012

The government seems determined to turn out the lights on the digital age. And this is with or without SOPA or the other bills that were only this week shouted down by the global digital community on Blackout Wednesday. The very next day, after support for that legislation collapsed after an impressive mass protest, the FBI and the Justice Department demonstrated that they don’t have to pay any attention to all this silly clamor. Congress, legislation, polling, debates, politicians, the will of the people — it’s all a sideshow to these people.

The FBI and Justice Department, on their own initiative, shut down megaupload.com, the biggest of thousands of file-sharing sites online, and arrested four of its top officials. The FBI is hunting down three others who seem to be on the lam. They all face extradition and 20 years in prison. As part of the sweep, the feds issued 20 search warrants and arrived at individual houses in helicopters. They cut their way into houses, threatened with guns, confiscated $50 million in assets and outright stole 18 domain names and many servers.

And what is the grave crime? The site is accused of abetting copyright infringement, that is permitting the creating of copies of ideas expressed in media. No violence, no fraud, no force, no victims (but plenty of corporate moguls who claim, without proof, that their profits are lower as a result of file sharing).

Megaupload had millions of happy users. It was the 71st-most-popular website in the world. Only 2% of its traffic came from search engines, which means that its customer base was loyal and collected through the hard work and entrepreneurship of site owners. For its users, it was a wholly legitimate service. For the owners, their profits were hard earned through advertising.

But the government saw it differently. And contrary to what many people believe, the already-existing law permits the government to do pretty much whatever it wants, as this case shows. The government relied on a 2008 law to make criminal, instead of civil, charges. A newly created IP task force is the one that worked with the foreign governments to seal the deal.

In the end, it was a presentation of exactly the nightmare scenario that anti-SOPA protesters said would happen if SOPA had passed. It turns out, as the deeper realms of the state already knew, that all of this was possible with no congressional action at all. Congress doesn’t need to do anything. We can watch the debates, go to the polls, elect people to represent us and perform all the rest of the rituals of the civic religion, but none of it matters. Power is here, active, oppressive, in charge and permanent, regardless of what you might believe.

Might it be that some of the users’ shared content on Megaupload was copyright protected? Absolutely. It is nearly impossible not to violate the law, as shown by SOPA sponsor Lamar Smith’s own campaign website, which used an unattributed background image in technical violation of the law. The leading opponent of piracy might himself be a pirate!

But the trendline with Megaupload was clearly toward using the space to launch new artists with new content — not piracy, but creativity. As Wired.co.uk wrote, this crackdown:

“came shortly after Megaupload announced music producer Swizz Beatz — married to Alicia Keys — as their CEO. They had rallied a whole host of musicians, including Will.i.am, P. Diddy, Kanye West and Jamie Foxx to endorse the cloud locker service. Megaupload was building a legitimate system for artists to make money and fans to get content.”

What‘s this all about? It is some powerful corporate lobbyists trying to prevent the emergence of an alternative system of art and music delivery, one powered by people, rather than merely the well connected.

The Internet’s great glory is its seemingly magical capacity for distributing information of all sorts universally unto infinity. The idea of the state’s regulations on information — instituted by legislators in the 19th century — is that this trait is deeply dangerous and must be stopped. So it is inevitable that the powers that be will try to shut it down; copyright enforcement is only the most-convenient Taser of choice.

This is the battle for whether the digital age is permitted to exist in an atmosphere of free speech, free association, free enterprise and real property rights or whether it will be controlled by government in conjunction with aging media moguls from monopolistic corporate oligarchies. The lines are clearly drawn, and the battle is taking place in real-time.

Example: Within minutes after the officials of Megaupload were arrested, a global hacker group called Anonymous shut down the Justice Department’s website and the sites of the Motion Picture Association of America, the Recording Industry Association of America, Universal music and BMI — the major lobbying forces in Washington for restriction and reaction against the Internet.

In another stage of the great battle over information freedom, the Supreme Court, on the very day of the SOPA protests, handed down a decision that could have a devastating effect in the months and years ahead. It permitted the re-copyrighting of works that are already in the public domain so that the domestic law accords with the international law. If that sounds like no big deal, consider that many local orchestras have already changed their season lineups to remove some major works from their repertoire because they can no longer handle the licensing fees.

It’s hard to know what to call this but cultural masochism.

Regardless of how the legal struggles turn out, a culture of rational and irrational fear has gripped the Web. I’ve noticed this growing over the last months, but just this week, it has become worse, to the point of paranoia, and even mania. The successful protests against SOPA ended up only causing the censors to redouble their efforts, and the message is getting out: Almost everything you want to do online could be illegal.

A small sample of what I mean… Just this morning, I received the following email: “BBC Four recently broadcast a stunningly beautiful documentary called God’s Composer (Tomás Luis de Victoria), hosted by Simon Russell Beale. A friend in Rome sent me a link to it, but I’m not sure I’m free to share it. Have you seen this documentary? It is stunning both visually and musically.”

Not free to share a link? What? To be sure, I don’t know whether he intended to send me to the BBC or some other site that is hosting an additional copy of it. Regardless, this is what it has come down to: a belief that every email is traced, every site is monitored, every act of individual volition on the Web could be a crime, every website is vulnerable to an overnight takedown, every domain owner could be subject to arrest and jail.

The battle between power and freedom dates to the beginning of recorded history, and we are seeing it play out right before our eyes in the digital age. It’s as if at the beginning of the Bronze Age, the leading tribal chieftain made smelting ore illegal; or if at the transition from iron to steel, the ruling elite put a cap on the temperature of refining ovens; or if at the beginning of flight, some despot declared the whole enterprise to be too risky and economically damaging to the industry that depended on land travel.

In the current version, the issue of “intellectual property” is at the forefront of this battle. The first most people heard of this was on Blackout Wednesday, when Wikipedia went black. This is a foretaste of the future in a world in which power achieves victory after victory, while the rest of the world cowers with fear in darkening times.